Office of the General Counsel

Sexual Harassment Law and Liability
Part II

In Part I of this series we discussed the legal definition of sexual harassment and introduced the concepts of "quid pro quo" and "hostile environment" harassment. In this Part we will discuss the standards of liability being used by the courts to determine whether individuals and institutions are answerable for damages and other relief.

If sexual harassment is committed on campus, who is liable?

The perpetrator can always be held personally liable for his or her own wrongful acts. However, depending on the circumstances, others may find themselves subjected to liability as well. For example,
the supervisor of an employee/ perpetrator, who is made aware of the harassment, but fails to take action to report or correct it, may be held liable if the harassment continues or if other persons are subsequently victimized. Additionally, the University may be held liable for the wrongful acts of its employees under various legal theories, which we will discuss in more detail.

Why is the University liable if it didn't condone the harassment?

When a supervisor harasses a subordinate by threatening adverse job consequences if the supervisors demands for sexual favors are not met ("quid pro quo" harassment) the courts may hold the
University "strictly" liable even though it neither knew of nor condoned the supervisors
misconduct. Strict liability means that the University wont be permitted to defend itself by arguing that it had a policy against sexual harassment and didn't know of the supervisors misconduct. The rationale for this tough position has been that the University voluntarily gave the supervisor power and authority over subordinates that the supervisor would not otherwise have had. Therefore, misuse of the University's power, even in violation of the University's policies, is deemed to be an act of the University itself. Liability for another's wrongful acts is called "vicarious" liability, and is a legal principle that has been in existence for centuries. Historically, because individual wrongdoers often have meager assets, the courts have looked for a "deep pocket" from which monetary damages may be paid to the innocent victim. Employers generally have the deepest pocket of any of the parties. The possibility of vicarious liability is also designed to be an incentive for employers to take extra care in screening new hires and in training supervisory personnel.

You mentioned the University's liability for quid pro quo harassment. What about hostile environment
harassment?

Until the summer of 1998 the law seemed to be that the University was only liable for hostile environment harassment if it actually knew about it or if the harassment was so pervasive that the University should have known about it AND if the University failed to take action to prevent and correct it. Based on many, many case decisions, my colleagues around the country and I assumed that the existence of a strong anti-sexual harassment policy, good training, and prompt remedial action when hostile environment harassment was brought to our attention would effectively insulate the University from liability.
However, in two cases decided last year, Faragher v. City of Boca Raton and
Burlington Industries, Inc.v. Ellerth, the Supreme Court did away with the distinction between quid pro quo and hostile environment for purposes of determining the employers liability when the
harassment is committed by a supervisor. (As far as we know, the distinction still applies when the hostile environment is created by co-workers/students.) As you might gather, these two cases dramatically
changed and increased the liability of the University for harassment by its supervisory personnel. Quid pro quo cases are relatively rare and hard to prove. Hostile environment cases are far more common. Now, the University is strictly liable for either kind of sexual harassment committed by a supervisor, regardless of how good its policy, training and enforcement mechanisms are. To be 100% accurate, the Supreme Court did hold out the possibility for a defense, but in my opinion the elements of that defense will almost never exist. In order to succeed in the defense the University must prove EACH of the following things:

The harassment did not result in adverse employment action against the victim (dismissal,
demotion, assignment to less desirable tasks), AND

The University exercised reasonable care to prevent and correct promptly any sexually harassing behavior, AND

The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the University (e.g., pursue a complaint under policy) or to otherwise avoid harm.

If the University is going to be held liable anyway, why bother with all the training and enforcement efforts?

First, and foremost, sexual harassment is intolerable, especially in an academic environment, and we
have a moral obligation to do whatever we can to prevent it from happening. Second, if sexual harassment does occur we have an ethical duty to correct it as quickly as possible and to mitigate the injury as
much as practicable.

You've talked a lot about harassment against employees, but what about harassment against students?

Harassment of students is governed by a different set of legal principles altogether. As you may recall from Part I of this series, harassment against employees is governed by Title VII of the Civil Rights Act of 1964 whereas harassment against students is governed under Title IX of the Higher Education Amendments of 1972. Because of the different legislative histories behind these two enactments the Supreme Court has applied totally different standards of liability. Title IX was not originally designed to provide a "private" right of action to individual students (unlike Title VII which gives an action to
individual employees). Rather, Title IX was designed to give The U.S. Department of Education a way to revoke federal funding to institutions that violated Title IX's provisions. Over time, through what some have called "judicial legislating" the courts have granted individuals the right to sue for enforcement of Title IX, including suits for injunctive relief and monetary damages. But, in the summer of 1998, in a case titled Gebser
v. Lago Vista Independent School District, the Supreme Court severely restricted private actions under Title IX, holding that individual students could recover damages only if they proved
(1) that they had complained about harassment to a supervisor of the offending teacher who had authority to stop the harassment and (2) the supervisor deliberately refused to take action. Gebser is an
amazing case because it is hard to think of a worse set of facts from an institutional point of
view. A high school teacher was having a sexual relationship with an under aged student. The school district had no policy concerning sexual harassment and had not done any training of its employees. The harsh result of the case is attributable entirely to the different legislative histories behind Titles VII and IX. One has to wonder if Congress won't take action in the near future to correct this stark disparity. However, it is important to note that UNCG policy makes no such distinctions. Sexual harassment of students is intolerable and, if such allegations are substantiated, will result in severe consequences. I should also note that when the University employs students, Title VII rather than Title IX
will govern harassment in their workplace.

What are the consequences for a University employee who commits sexual harassment?

In addition to internal discipline up to and including dismissal, the employee is likely to have to hire an attorney at his or her own expense and to pay any judgment that may be awarded out of his or her own pocket.